On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket L-378-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Simonelli.
In this case, governed by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a, a jury awarded plaintiff $300,000 for her alleged permanent injuries suffered as a result of an automobile accident on August 23, 2003. Defendant Russell Yermal, the driver of the vehicle in which plaintiff was a passenger, and defendant Alan Cahill, the vehicle's owner, appeal from the denial of their motion for a new trial.
On appeal, defendants contend that the trial judge improperly instructed the jury on Model Jury Charge 8.11F, Aggravation of the Pre-existing Disability (Approved 1/97) (the aggravation charge) because there was no evidentiary basis for the charge, and because the charge improperly permitted plaintiff to change her claim from a "fresh injury" to a "pre-existing injury." Defendants also contend that the judge erred in applying Edwards v. Walsh, 397 N.J. Super. 567 (App. Div. 2007) to deny their motion for a new trial. We reverse.
The facts are straightforward. Yermal was traveling on Church Street in Franklin Borough when he failed to negotiate a left hand turn, struck a utility pole, crossed a lane of traffic, and struck another vehicle, causing his vehicle to flip over several times before landing upside down, impaled on a tombstone. Plaintiff was extricated from the vehicle and taken by ambulance to St. Claire's Hospital, where she was treated and released the same day.
According to plaintiff, she returned to the hospital the next day, complaining of lower back pain. She had x-rays, which revealed no fractures, and was released. She then went to her family physician, who told her "wait it out until the pain actually went away on its own." Plaintiff also treated for about a month with a chiropractor, Dr. Paul Marston, but treatment did not help and the pain grew worse over time. Plaintiff described the pain as severe in her lower back, at times radiating down her legs, with a tingling, numbing feeling. Sitting, walking, and other activities involving movement, exacerbated her condition.
Despite her symptoms, plaintiff received no treatment from approximately September 2003 to October 2004. In or about October 2004, plaintiff allegedly collapsed due to radiating pain in her back and down her leg, which occurred when she tried to pick up a towel to dry her hair. She went to the hospital, where x-rays revealed no fracture. Plaintiff then went to Dr. David Basch, who ordered an MRI, which revealed L4-5 and L5-S1 disc herniations. Dr. Basch referred plaintiff to a physical therapist, prescribed Celebrex for pain, prescribed a back brace that plaintiff still wore at the time of trial, and recommended cortisone injections. Plaintiff said that Dr. Basch informed her that she will need surgery.
Plaintiff filed a complaint on July 11, 2005, alleging that the accident was the sole cause of her injuries and that her injuries were permanent. She did not allege an aggravation of a pre-existing injury. In fact, she certified in her interrogatory answers that she was not seeking damages for aggravation of a pre-existing injury.
Through discovery, plaintiff served Dr. Marston's records, which revealed that he had treated plaintiff three times prior to the accident. The note for the May 7, 2003 visit indicates that plaintiff complained of pain in her left hip and lower back, secondary to pitching softball, and radiating pain in her left leg. Plaintiff admitted at her deposition that she saw Dr. Marston before the accident due to pain in her left hip, which she suffered while pitching in softball. She denied complaining of lower back pain before the accident.
Plaintiff's expert in orthopedic medicine, Arthur Tiger, M.D., examined plaintiff and stated in his report that "[p]rior to the accident, she never had any problems with her lower back." He noted that the MRI indicated that plaintiff suffered L4-5 and L5-S1 disc herniations. Dr. Tiger opined that the accident probably caused these herniations, as well as chronic lumbosacral strain syndrome with chronic myofascitis and clinical right sided lumber radiculopathy. He also opined that plaintiff's injuries were permanent.
Barry S. Levine, M.D., defendant's expert in general medicine and orthopedics, also examined plaintiff. Dr. Levine stated in his report that the MRI "show[ed] rather benign findings of disc bulges at L4-5 and L5-S1 and the possibility of a small herniation at L5-S1." However, he opined that "[t]hese findings are not posttraumatic, not related to [the] accident, and were most probably pre-existing[.]"
Plaintiff testified at trial that prior to the accident she was an avid softball player for many years, a snowboarder, and an archer; however, she gave up these activities due to her injuries from the accident. She stated that she had never experienced low back pain radiating to her legs. However, she admitted treating with Dr. Marston prior to the accident for "tenderness" and "being sore[,]" which she attributed to ...